Chapter wise rate wise GST Schedule and GST Compensation Cess rates as decided in the GST Council Meeting

Chapter wise, rate wise GST Schedule and GST Compensation Cess rates as decided in the GST Council Meeting held on 18.05.2017

Chapter wise rate wise GST Schedule

GST RATE SCHEDULE FOR GOODS
[As per discussions in the GST Council Meeting held on 18th May, 2017]

The fitment of rates of goods were discussed today during the 14th GST Council meeting held at Srinagar, Jammu & Kashmir. The Council has broadly approved the GST rates for goods at nil rate, 5%, 12%, 18% and 28% to be levied on certain goods. The information is being uploaded immediately after the GST Council’s decision and it will be subject to further vetting during which the list may undergo some changes.

GST rates for certain goods like textile, footwear, biris, precious metals, etc. are yet to be decided by the GST Council. The footnote below the table gives the list of such goods.

download chapter-wise-rate-wise-gst-schedule-18.05.2017

Draft Fugitive Economic Offenders Bill 2017-comments invited by the Government

Draft Fugitive Economic Offenders Bill 2017-comments invited 

Draft Fugitive Economic Offenders Bill 2017

Ministry of Finance
Press Release dated 18/05/2017

Government invites comments / suggestions of all stakeholders concerned / public at large on the Draft Fugitive Economic Offenders Bill 2017

It is widely felt that the spectre of high-value economic offenders absconding from India to defy the legal process seriously undermines the rule of law in India. It is, therefore, felt necessary to provide an effective, expeditious and constitutionally permissible deterrent to ensure that such actions are curbed.

            In view of the above context, a Budget Announcement was made by the Government in the Budget 2017-18 that the Government is considering to introduce legislative changes or even a new law to confiscate the assets of such absconders till they submit to the jurisdiction of the appropriate legal forum. The relevant extract from the Budget Speech is re-produced below. 

“In the recent past, there have been instances of big time offenders, including economic offenders, fleeing the country to escape the reach of law. We have to ensure that the law is allowed to take its own course. Government is therefore considering introduction of legislative changes, or even a new law, to confiscate the assets of such persons located within the country, till they submit to the jurisdiction of the appropriate legal forum. Needless to say that all necessary constitutional safeguards will be followed in such cases.”

            Pursuant to the above Budget Announcement, a draft law, known as ‘The Fugitive Economic Offenders Bill, 2017’ has been prepared. A copy of the Draft Bill along with an Explanatory Note explaining the key legal provisions of the Bill are also hosted on the home page of the Department of Economic Affairs, Ministry of Finance at http://dea.gov.in/recent-update

            All stakeholders concerned / public are requested to forward comments / suggestions that they may wish to submit on the Draft Bill by 3rd June 2017  by e-mail to parveen.k63@gov.in or in hard copy to Shri Parveen Kumar, Under Secretary (FSLRC), Department of Economic Affairs, Ministry of Finance, Room No. 48, North Block, New Delhi-110001. The decision of the Government with respect to the Draft Bill will be taken after receipt of public / stakeholders comments and after following due procedure thereafter.

Click here to See the Fugitive Economic Offenders Bill, 2017:

Click here to see the Fugitive Economic Offenders Bill, 2017: Explanatory Note:

Postings-transfers in the grade of ACIT-DCIT List of 104 Assistant-Deputy Commissioner of Income Tax

Postings-transfers in the grade of ACIT-DCIT List of 104 Assistant-Deputy Commissioner of Income Tax (Local Change) Transferred

Postings-transfers in the grade of ACIT-DCIT

F. No. A-22013/1/2017-Ad-VI (Pt .)
Government of India
Ministry of Finance
Department of Revenue
(Central Board of Direct Taxes)

North Block, New Delhi-110 001.
Date: 18.05.2017.

Order No.80 of 2017

The following postings/transfer s in the grade of Assistant/Deputy Commissioner of Income Tax (Local Change) are, hereby, ordered with immediate effect and until further orders:-

S.No. Name (Smt./Sh.) Civil

Code

FROM:CCA /DIRECTORATE TO: CCA /DIRECTORATE
1 K LAKSHMI 08609 CPC, Bengaluru CCA Karnataka and Goa
2 NIRMALA 09554 CPC,Bengaluru CCA Karnataka a nd Goa
3 SAJIT KUMAR P 11534 CPC,Bengaluru CCA Karnataka and Goa
4 RAJASHEKAR V 11535 CPC,Bengaluru CCA Karnataka a nd Goa
5 RAMKISHAN MEENA 08592 PR. DGIT (ADMN), DELHI CCA DELHI
6 YASH PAL CHAWLA 09501 PR. DGIT (ADMN), DELHI CCA DELHI
7 VIPIN KUMAR 10527 PR. DGIT (ADMN), DELHI CCA DELHI
8 VED PRAKASH 10603 PR. DGIT (ADMN), DELHI CCA DELHI
9 MUNSHI RAM 13526 PR. DGIT (ADMN), DELHI CCA DELHI
10 GIR ISH PARIHAR 13541 PR. DGIT (ADMN),DELHI CCA DELHI
11 MANISH TEWA RI 13528 PR. DGIT(LOGISTICS) ,DELHI CCA DELHI
12 VIVEK GULATI 11529 PR. DGIT (HRD), DELHI CCA DELHI
13 AN IS HA GHEI 13542 PR. DGIT (HRD), DELHI CCA DELHI
14 DIGVIJAI KUMAR CHAUDHARY 080GJ PR. DGIT (HRD), DELHI CCA DELHI
15 AS HISH SINHA 10080 PR. DGIT(Risk Assessment), DELHI CCA DELHI
16 ABHISHEK ANAND llOCA PR. DGIT(Risk Assessme nt),DELHI CCA DELHI
17 MANOJ AGGARWAL 13525 PR. DGIT(L & R),DELHI CCA DELHI
18 P S THUINGALENG 08143 PR. DGIT(SYSTEMS), DELHI CCA DELHI
19 JANAR DAN DAS 08577 PR. DGIT(SYSTEMS), DELHI CCA DELHI
20 MUNEESH RAJA NI 10529 PR. DGIT(SYSTEMS) ,DELHI CCA DELHI

 

21 RAJESH DHINGRA 11522 PR. DGIT{SYSTEMS) ,DELHI CCA DELHI  
22 ANURAG SHARMA 11525 PR. DGIT(SYSTEMS) AT DELHI CCA DELHI
23 K. VIDYA 13555 PR. DGIT(SYSTEMS), DELHI CCA DELHI
24 KAILASH V GAUTAM 13576 PR. DGIT(SYSTEMS) ,DELHI CCA DELHI
25 CHETAN R llOEX PR. DGIT(SYSTEMS),  DELHI CCA DELHI To be Relieved after 31.07.2017
26 LAU I PRASAD 09592 PR. DGIT(VIGILANCE),  DELHI CCA DELHI  
27 VERGHESE JOSEPH 07663 PR . DGIT(VIGILANC E), MUMBAI CCA MUMBAI
28 PUNEETIND ER
SINGH WALIA
08004 PR. DGIT(VIGILANCE), MUMBAI CCA MUMBAI
29 RAJGOPAL K PARTHASARATHY 12586 PR . DGIT(VIGILANCE), MUMBAI CCA MUMBAI
30 C MURUGGESAN 07646 PR. DGIT(VIGILANCE), CHENNA I CCA CHENNAI
31 SANJAY  KUMAR 08094 NADT Nagpur Pr.DGIT (Trg.) CCA NAGPUR
32 S M VVSARMA 13549 NADT Nagpur Pr.DGIT (Trg.) CCA NAGPUR
33 DR. SURJIT KUMAR
SAHA
13633 NADT Nagpur Pr.DGIT (Trg.) CCA NAGPUR
34 SRINIVASU KOLLIPAKA 090GF NADT Nagpur Pr.DGIT (Trg.) CCA NAGPUR
35 SAROJINI XESS 115EH DCIT(OSD), V&L DIVISION, CBDT CCA DELHI
36 K. VAMSI KRISHNA 12009 DCIT (OSD) ,A&J DIVISION,CBDT CCA DELHI
37 NEERAJ GUPTA llOBQ DCIT (OSD) ,ITA DIVISION,CBDT CCA DELHI
38 GUNJA N VARSHNEY 100BN DCIT (OSD) ,ITA DIVISION,CBDT CCA DELHI
39 R.KAR UPPASAMY 145CO UOP Karnataka and Goa CPC, Bengaluru
40 AMR IT RAJ SINGH 10014 CCA Karnataka and Goa CPC,Benga luru
41 GANESH V 12556 UOP Karnataka and Goa CPC, Bengaluru
42 SRI ADITYA RAYA PROLU 13075 UOP Karnataka and Goa CPC,
Benga luru
43 RIJULA UNIYAL llOAN UOP DELHI PR. DGIT (ADMN).
DELHI
44 SHANKAR CHAKRABART I 155EN UOP DELHI PR. DGIT (ADMN), DELHI
45 BHUPINDERJIT
KUMAR
09519 CCA  DELHI PR. DGIT (ADMN), DELHI
46 SUDHA YADAV 13120 CCA DELHI PR. DGIT (ADMN).
DELHI

 

47 KULWINDER KAUR  145FX UOP DELHI PR. DGIT (ADMN), Delhi
48 G P SHARMA 155BW UOP DELHI PR. DGIT (ADMIN) DELHI
49 UDAYARAJ SURANA 155DA UOP DELHI PR. DGIT (ADMIN) DELHI
50 SANDIP MANDAL 155GW UOP DELHI PR. DGIT (ADMIN) DELHI
51 SUSHANTA KUMAR BISWAS 155GV UOP DELHI PR. DGIT (ADMIN) DELHI
52 MADAN LAL 155GJ UOP DELHI PR. DGIT(LOGISTICS),DELHI
53 SANDIPAN KHAN 155EQ UOP DELHI PR. DGIT(LOGISTICS),DELHI
54 KAILASH CHANDRA MEENA 13655 UOP DELHI PR. DGIT(LOGISTICS),DELHI
55 AASTHA LAKSHMI 080AB UOP DELHI PR. DGIT (HRD) DELHI
56 B K SINGH 08561 CCA DELHI PR. DGIT (HRD) DELHI
57 SHANKAR GUPTA 09555 CCA DELHI PR. DGIT (HRD) DELHI
58 LOBSANG TENZING 155GZ UOP DELHI PR. DGIT (HRD) DELHI
59 SUNIL KUMAR 155FV UOP DELHI PR. DGIT (HRD) DELHI
60 NEHA NAUTIYAL 12008 CCA DELHI PR. DGIT (HRD) DELHI
61 MANOJ TIWARI 13554 UOP DELHI PR. DGIT (HRD) DELHI
62 JAGAN LAL MEENA 13653 UOP DELHI PR. DGIT (HRD) DELHI
63 PIYUSH KUMAR KOTHARI 12085 CCA DELHI
64 ANANJAY KUMAR TIWARY 12011 CCA DELHI
65 SURJA KUMAR KHATI 155GU UOP DELHI
66 GILZARINA DAR 155AD UOP DELHI
67 ROHINI VINCENT 155BH UOP DELHI
68 TSERING MAJUMDAR 155FG UOP DELHI
69 NAIR RESHMA REGHUNATHAN 11004 CCA DELHI
70 DHRUBASISH DEKA 12023 CCA DELHI
71 SS NAIN 12545 CCA DELHI
72 RAVINDRA H CHAVAN 155GL UOP DELHI

 

73 DEWANGI B M 155BC UOP DELHI PR. DGIT(SYSTEMS ) AT DELHI
74 SR BALAKRISHNAN 155BG UOP DELHI PR. DGIT(SYSTEMS) AT DELHI
75 NOORUDDIN 155AE UOP DELHI PR. DGIT(SYSTEMS) AT DELHI
76 OM PRAKASH JHA 155BY UOP DELHI PR. DGIT(SYSTEMS} AT DELHI
77 ANITA PILLAI 155BY UOP DELHI PR. DGIT(SYSTEMS} AT DELHI
78 RAGHUBIR SINGH 155DP UOP DELHI PR. DGIT(SYSTEMS} AT DELHI
79 MAHENDER SINGH 155DQ UOP DELHI PR. DGIT(SYSTEMS} AT DELHI
80 SUMAN KUMAR SHARMA 12542 UOP DELHI PR. DGIT(SYSTEMS ) AT DELHI
81 GANGA RAM NIRWAN 13634 UOP DELHI PR. DGIT(SYSTEMS) AT DELHI
82 RAMESH CHAND 13651 UOP DELHI PR. DGIT(SYSTEMS} AT DELHI
83 SALINI M ROY 1SSBL UOP DELHI PR. DGIT(VIGILANCE) AT DELHI
84 VINIKUPU H ARKHA 12094 CCA DELHI PR. DGIT(VIGILANCE } AT DELHI
85 DIWAKAR SINGH 12512 PR. DGIT (HRD), DELHI PR. DGIT(VIGILANCE) AT DELHI
86 BUDHI PRAKASH G 155CZ UOP DELHI PR. DGIT(VIGILANCE) AT DELHI
87 SUBIR SANPUI 155GT UOP DELHI PR. DGIT(VIGILANCE ) AT DELHI
88 SREEN IVASARAGHAV AN S IYENGER 10569 CCA MUMBAI PR.DGIT(VIGILANCE) AT MUMBAI
89 RAMNATH P. MURKUNDE 12583 CCA MUMBAI PR. DGIT(VIGILANCE) AT MUMBAI
90 K SARVANA 13623 CCA (TAMIL NADU) PR.DGIT(VIGILANCE) AT CHENNAI
91 S  SUBRAMANIAN 13532 CCA (TAMIL NADU) PR.DGIT(VIGILANCE) AT CHENNAI
92 ANANT KUMAR BISWAS 13665 CCA (WEST BENGAL &

SIKKIM)

PR. DGIT(VIGILANCE) AT KOLKATA
93 SARBARIDAS 145BI CCA (WEST BENGAL &

SIKKIM}

PR. DGIT(VIGILANCE) AT KOLKATA
94 CHINMAYA KORGAONKAR 10021 CCA NAGPUR Pr.DGIT,NADT, Nagpur
95 UPSEN BORKAR 090GG CCA NAGPUR Pr.DGIT,NADT, Nagpur
96 SHASHIKANT

KUSHWAHA

09098 CCA NAGPUR Pr.DGIT,NADT, Nagpur
97   SMRITI BHARDWAJ 110AC UOP DELHI To be posted as OSD with Member (A&J),CBDT

 

98 SOUMENDU KUMAR DASH 12026 CCA DELHI To be posted as OSD,V& L with Member  (P&V),CB DT
99 VIPUL KASHYAP 09518 UOP DELHI To be posted as OSD,V& L with Member (P&V),CBDT
100 VINAY SHEEL GAUTA M 090A S UOP DELHI To be posted as OSD with Member (IT),CBDT
101 RAJA RAJESWARI R 12069 CCA DELHI To be posted as OSD with Member (IT),CBDT
102 AMA NPREET KAUR 10018 CCA DELHI To be posted as OSD with Member {lnv),CBDT
103 GAURA V PUNDIR 100BK CCA DELHI To be posted as OSD with Member (lnv),CBDT
104 JASWINDER SINGH 11573 PR. DGIT(VIGILA NCE) AT DELHI CCA DELHI
 

Earlier Order (Order No. 104 of 2016), in respect of SHRI PRASHANT SHUKLA (100DC) stands cancelled .

2. The compliance  report  regarding  relieving/ joining  of above officers  shall  be forwarded  by  the  Pr.  CCIT  concerned  to  the  Board  and  the  Database  Cell  at www.irsofficersonline.gov.in by 26th May, 2017

3. Hindi version of this order will follow .

( Brij Mohan)
18·05 .2017
Under Secretary to the Government of India
Tel. 011-2309 5474

Download Transfer Order Click Here >>

ICJ stays execution of Jadhav-Download judgment-order in jadhav’s Case

ICJ stays the execution of Jadhav

Pakistan must take “all measures at its disposal” to prevent the execution of an Indian national, Mr. Kulbhushan Sudhir Jadhav, pending final judgment of the Court”

ICJ to deliver order on Jadhav Case

INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org Twitter Account: @CIJ_ICJ

Press Release

Unofficial

No. 2017/22
18 May 2017

Jadhav Case (India v. Pakistan)
Provisional Measures

The Court indicates to the Islamic Republic of Pakistan that it must take “all measures at its disposal” to prevent the execution of an Indian national, Mr. Kulbhushan Sudhir Jadhav, pending final judgment of the Court

THE HAGUE, 18 May 2017. The International Court of Justice (ICJ), principal judicial organ of the United Nations, today indicated to the Islamic Republic of Pakistan that it must “take all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final judgment of the Court in the Jadhav Case (India v. Pakistan).

In its Order indicating provisional measures, which was adopted unanimously, the Court also stated that the Government of Pakistan shall inform it of all measures taken in implementation of that Order. It further decided to remain seised of the matters which form the subject of the Order until it has rendered its final judgment.

History of the proceedings
India filed its Request for the indication of provisional measures on 8 May 2017, the same day that it initiated proceedings against Pakistan in a dispute concerning alleged violations of Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to an Indian national, Mr. Jadhav, sentenced to death in Pakistan

Reasoning of the Court
The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”. In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction. 

The Court then turns to the question whether the rights alleged by India are at least plausible. It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible

The Court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought.

The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observes that Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.

The Court concludes by indicating the following measures:

Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.

The Court also decides that, until it has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.

Composition of the Court
The Court was composed as follows: President Abraham; Judges Owada, Cançado Trindade, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian; Registrar Couvreur.

Judge Cançado Trindade appends a separate opinion to the Order of the Court; Judge Bhandari appends a declaration to the Order of the Court.

___________

Note: The Court’s press releases do not constitute official documents.

___________

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York. The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States (its judgments have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. Independent of the United Nations Secretariat, it is assisted by a Registry, its own international secretariat, whose activities are both judicial and diplomatic, as well as administrative. The official languages of the Court are French and English. Also known as the “World Court”, it is the only court of a universal character with general jurisdiction

The ICJ, a court open only to States for contentious proceedings, and to certain organs and institutions of the United Nations system for advisory proceedings, should not be confused with the other  mostly criminal  judicial institutions based in The Hague and adjacent areas, such as the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the Security Council), the International Criminal Court (ICC, the first permanent international criminal court, established by treaty, which does not belong to the United Nations system), the Special Tribunal for Lebanon (STL, an international judicial body with an independent legal personality, established by the United Nations Security Council upon the request of the Lebanese Government and composed of Lebanese and international judges), or the Permanent Court of Arbitration (PCA, an independent institution which assists in the establishment of arbitral tribunals and facilitates their work, in accordance with the Hague Convention of 1899).

___________

Information Department:
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim and Ms Joanne Moore, Information Officers (+31 (0)70 302 2337)
Mr. Avo Sevag Garabet, Associate Information Officer (+31 (0)70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)

Annex to Press Release No. 2017/22

Concurring Opinion of Judge Cançado Trindade

1. In his Concurring Opinion, composed of seven parts, Judge Cançado Trindade begins by pointing out that, having concurred with his vote to the adoption of the present Order indicating Provisional Measures of Protection, there are certain aspects pertaining to the matter dealt with therein to which he attaches great importance. He feels thus obliged to append his Concurring Opinion thereto, so as to leave on the records the foundations of his own personal position thereon. He purports to address the selected points bringing them into the realm of juridical epistemology.

2. The points he proceeds to examine (part I) are: (a) rights of States and of individuals as subjects of international law; (b) presence of rights of States and of individuals together; (c) the right to information on consular assistance in the framework of the guarantees of the due process of law; (d) the fundamental (rather than “plausible”) human right to be protected: provisional measures as jurisdictional guarantees of a preventive character; (e) the autonomous legal regime of provisional measures of protection; and (f) the humanization of international law as manifested in the domain of consular law.

3. The present Jadhav case concerns alleged violations of the 1963 Vienna Convention on Consular Relations with regard to the detention and trial of an Indian national (Mr. K.S. Jadhav), sentenced to death (on 10.04.2017) by a Court Martial in Pakistan. Keeping in mind the distinct lines of arguments advanced by the two contending parties (India and Pakistan) before the ICJ, he observes at first that the present case “brings to the fore rights of States and of individuals emanating directly from international law” under Article 36(1) of the 1963 Vienna Convention, as related to the U.N. Covenant on Civil and Political Rights (paras. 5-6).

4. Judge Cançado Trindade stresses that, in “contemporary international law, rights of States and of individuals are indeed to be considered altogether, they cannot be dissociated from each other” (para. 7). He recalls that, before the turn of the century, the Inter-American Court of Human Rights [IACtHR] delivered its pioneering Advisory Opinion no 16 on the Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of 01.10.1999), advancing the proper hermeneutics of Article 36 (1) (b) of the 1963 Vienna Convention, reflecting the impact thereon of the corpus juris of the International Law of Human Rights (ILHR).

5. On that occasion, – he further recalls, -he appended a Concurring Opinion appended to that Advisory Opinion no 16, wherein he examined that impact, putting an end to the “old monopoly of the State of the condition of being subject of rights”, and demystifying the constraints of an outdated voluntarist positivism (para. 8). He then warned that those constraints “had wrongly been indifferent to other areas of human knowledge, as well as to the existential time of human beings”, with its “obsession with the autonomy of the `will´ of the States”, and he added:

“It so happens that the very emergence and consolidation of the corpus juris of the ILHR are due to the reaction of the universal juridical conscience to the recurrent abuses committed against human beings, often warranted by positive law: with that, the Law came to the encounter of human beings, the ultimate titulaires of their inherent rights protected by its norms (…).

In the framework of this new corpus juris, one cannot remain indifferent to the contribution of other areas of human knowledge, nor to the existential time of human beings. (…) [T]he right to information on consular assistance (…), “cannot nowadays be appreciated in the framework of exclusively inter-State relations, as contemporary legal science has come to admit that the contents and effectiveness of juridical norms accompany the evolution of time, not being independent of this latter” (…).

Thus, (…) Article 36 (1) (b) of the aforementioned 1963 Vienna Convention, in spite of having preceded in time the provisions of the two U.N. Covenants on Human Rights (of 1966), could no longer be dissociated from the international norms of protection of human rights concerning the guarantees of the due process of law and their evolutive interpretation” (paras. 9-11).

6. Judge Cançado Trindade holds (part III) that “States and individuals are subjects of contemporary international law; the crystallization of the subjective individual right to information on consular assistance bears witness of such evolution” (para. 12). The ICJ itself took into account the ILHR in the case of Hostages in Tehran (Provisional Measures, Order of 15.12.1979) (paras. 12-13), and, much later, the “presence of rights of States and of individuals together” was acknowledged in express terms by ICJ in the case of Avena and Other Mexican Nationals (Judgment of 31.03.2004 para. 40), where it stated that “violations of the rights of the individual under Article 36 [of the 1963 Vienna Convention] may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual” (para. 14).

7. The present Jadhav case affords, in his view, yet another occasion to keep in mind the formation of an opinio juris communis to this effect (para. 16), corresponding to a new ethos of our times (para. 18). It has thus become indispensable to link, for the purpose of protection, — he ponders, — “the right to information on consular assistance with the guarantees of the due process of law” set forth in the instruments of the ILHR, bearing witness of the process of humanization of international law, as manifested in particular also in the domain of consular law nowadays (part IV).

8. Provisional measures of protection — he proceeds — have become true jurisdictional guarantees of a preventive character (paras. 7 and 22), safeguarding, to begin with, the fundamental and non-derogable (rather than “plausible”) right to life (in addition to the right to liberty and security of person, and the right to a fair trial) (part V). Judge Cançado Trindade draws attention to the importance of compliance with provisional measures of protection, as illustrated by the IACtHR’s Orders in the case (of so-called “mandatory” death penalty) of James and Others versus Trinidad and Tobago (1998-2000), where the condemned individuals were not executed and the condemnatory sentences of the national tribunals were commuted (paras. 20-21).

9. Judge Cançado Trindade next considers the “autonomous legal regime of provisional measures of protection (part VI), in its component elements, namely: “the rights to be protected, the obligations proper to provisional measures of protection; the prompt determination of responsibility (in case of non-compliance), with its legal consequences; the presence of the victim (or potential victim, already at this stage), and the duty of reparations for damages” (para. 24). He proceeds that, even though the proceedings in contentious case before the ICJ keep on being strictly inter-State ones (by “attachment to an outdated dogma of the past”), this in no way impedes that the beneficiaries of protection in given circumstances are the human beings themselves, individually or in groups, – as he pointed out also in his Dissenting Opinion in the case concerning Questions Relating to the Obligation to Prosecute or to Extradite (Order of 28.05.2009), and in his Separate Opinion in the case of Application of the International Convention for the Suppression of the Financing of Terrorism [ICSFT] and of the International Convention on the Elimination of All Forms of Racial Discrimination [CERD] (Order of 19.04.2017) (para. 25)

10. Judge Cançado Trindade comes to the last part of his Concurring Opinion addressing the ongoing historical process of the humanization of international law (part VII), manifesting itself, as in the present Jadhav case, in particular also in the domain of consular law. He recalls that, already in his earlier Concurring Opinion in the IACtHR’s Advisory Opinion no 18 on the Juridical Condition and Rights of Undocumented Migrants (of 17.09.2003), he examined this process singling out the relevance, in its evolution, of fundamental principles, laying on the foundations themselves of the law of nations (le droit des gens, as foreseen by the “founding fathers” of the discipline), as well as of the emergence of jus cogens and the corresponding obligations erga omnes of protection, in their horizontal and vertical dimensions (para. 28). Those principles, – he added therein,

“form the substratum of the legal order itself, revealing the right to the Law (droit au Droit), of which are titulaires all human beings, irrespective of their statute of citizenship or any other circumstance (…). Without such principles, – which are truly prima principia, – wherefrom norms and rules emanate and wherein they find their meaning, the ‘legal order’ simply is not accomplished, and ceases to exist as such” (para. 29).

11. In his view, the “great legacy of the juridical thinking of the second half of the XXth century (…) has been, by means of the emergence and evolution of the ILHR, the rescue of the human being as subject” of the law of nations, endowed with international legal personality and capacity (para. 30). This was due — he proceeds — to “the awakening of the universal juridical conscience”, — the “recta ratio inherent to humanity, — as the ultimate material source of the law of nations, standing well above the ‘will’ of individual States” (para. 30). And Judge Cançado Trindade concludes:

“That outlook has decisively contributed to the formation, inter alia and in particular, of an opinio juris communis as to the right of individuals, under Article 36 (1) (b) of the 1963 Vienna Convention, reflecting the ongoing process of humanization of international law, encompassing relevant aspects of consular relations. Always faithful to this humanist universal outlook, I deem it fit to advance it, once again, in the present Concurring Opinion in the Order that the ICJ has just adopted today, 15.05.2017, in the Jadhav Case.

The ICJ has, after all, shown awareness that the provisional measures of protection rightly indicated by it in the present Order (resolutory point I of the dispositif) are aimed at preserving the rights of both the State and the individual concerned (…) under Article 36 (1) the 1963 Vienna Convention. The jurisprudential construction to this effect, thus, to my satisfaction, keeps on moving forward. Contemporary international tribunals have a key role to play in their common mission of realization of justice” (paras. 32-33).

Declaration of Judge Bhandari

Judge Bhandari agrees with the decision of the Court to indicate provisional measures. However, he wishes to place on record his views concerning the requirements for indicating provisional measures in more detail. This case gives rise to questions pertaining to the basic violation of human rights through the denial of consular access during the pendency of court proceedings in Pakistan, which culminated with Mr. Kulbhushan Sudhir Jadhav’s death sentence.

In his declaration, Judge Bhandari starts by outlining the facts pertaining to India’s Application instituting proceedings as well as to India’s Request for provisional measures. Subsequently, Judge Bhandari discusses the four requirements for the indication of provisional measures: (i) prima facie jurisdiction; (ii) plausibility; (iii) real and imminent risk of irreparable prejudice; and (iv) the link between the rights claimed on the merits and the provisional measures requested. Each requirement is examined in turn.

Concerning the facts of the case, Judge Bhandari underscores the uncertainty surrounding the circumstances in which Mr. Jadhav was arrested. He makes clear that the Parties do not agree as to where Mr. Jadhav was arrested, whether within or outside Pakistan. Judge Bhandari stresses the diplomatic intercourse between the Parties relating to India’s consular rights with respect to Mr. Jadhav. Despite thirteen Notes Verbales sent by India to Pakistan, Pakistan has not communicated to India either the charges against Mr. Jadhav, or the documents of the proceedings against him. He also outlines the court proceedings in order for Mr. Jadhav to obtain a revision of his death sentence or to be granted clemency. It is currently not clear whether any of these domestic remedies have been triggered by Mr. Jadhav himself, while it is known that his mother has filed, in an act of desperation, both for appeal under Section 133 (B) of the Pakistan Army Act 1952, and for clemency under Section 131 of the 1952 Act. Moreover, Judge Bhandari emphasizes that Pakistan’s denial of consular access has determined a situation in which India has no direct knowledge of the charges against Mr. Jadhav, as well as of the proceedings against him in the Pakistani military court.

Before addressing the requirements for indicating provisional measures, Judge Bhandari analyses the role of the 2008 India-Pakistan Agreement on Consular Access. He agrees with the Court that there is nothing which prima facie suggests that the Parties, by concluding the 2008 Agreement, have limited or set aside their reciprocal obligations under the Vienna Convention on Consular Relations. On the contrary, the 2008 Agreement amplifies, confirms and extends the Parties’ reciprocal obligations relating to consular assistance, for which the Vienna Convention is a framework. Therefore, the 2008 Agreement does not exclude the Court’s jurisdiction in the present case. Moreover, Judge Bhandari stresses that India did not rely on the 2008 Agreement, but only claimed the violation of the Vienna Convention. Specifically, India did not rely on the 2008 Agreement because: (i) Article 102, paragraph 2, of the United Nations Charter precludes the invocation before United Nations organs of treaties not registered with the United Nations, such as the 2008 Agreement: (ii) Article 73 of the Vienna Convention does not preclude the conclusion of treaties confirming, supplementing, amplifying or extending the provisions of the Vienna Convention itself; and (iii) Article 73 of the Vienna Convention does not allow the dilution of its provisions by means of the conclusion of subsequent consular treaties.

On prima facie jurisdiction, Judge Bhandari recalls that India based the Court’s jurisdiction on Article 36, paragraph 1, of the Statute, read in conjunction with Article I of the Optional Protocol to the Vienna Convention. Neither India nor Pakistan made any reservation to that Optional Protocol. He draws a parallel with LaGrand, in which the Court found to have prima facie jurisdiction based on the same legal provisions, to which both Germany and the United States of America had not made any reservations. Judge Bhandari states that the Court was right in following the previous jurisprudence in Equatorial Guinea v. France, in which it was held that, in order to find it has prima facie jurisdiction, the Court must satisfy itself that there prima facie exists a dispute between the Parties and that such a dispute prima facie falls within the scope of the treaty invoked. According to Judge Bhandari, the prima facie existence of a dispute is confirmed by the exchange between the Parties of Notes Verbales on the subject of consular access to Mr. Jadhav. Moreover, such a dispute falls within the scope of the Vienna Convention ratione materiae since the facts alleged by India all pertain to its consular rights guaranteed under the Vienna Convention, yet allegedly denied by Pakistan.

With reference to plausibility, Judge Bhandari recalls the Court’s test as recently restated in Ukraine v. Russia. According to Judge Bhandari, the rights claimed by India on the merits are plausible because they concern consular access to a person who is indisputably an Indian national, who has been arrested, tried and convicted in a foreign country. Therefore, it is plausible that India holds the rights it is claiming in the circumstances of the case, namely with respect to Mr. Jadhav. He recalls that the International Law Commission’s commentary to the Draft Articles that became the Vienna Convention clearly stated that the right to consular assistance as provided for in Article 36, paragraph 1, of the Vienna Convention applies also in cases where a national court decision has become final. In the present case, it is possible that appeals against Mr. Jadhav’s death sentence are still ongoing, and therefore rights to consular access plausibly apply.

Concerning real and imminent risk of irreparable prejudice, Judge Bhandari analysed the similarities between the present case and the previous death penalty cases: Breard, LaGrand and Avena. In all such cases, which involved facts comparable to the facts of Mr. Jadhav’s case, the Court found that the execution of the foreign national would have irreparably prejudiced the rights of consular access claimed by the sending State on the merits. Moreover, Judge Bhandari clarified that it does not matter, for making a finding of urgency, how long a period of time is likely to elapse before Mr. Jadhav is executed. So long as there is a real risk that Mr. Jadhav would be executed before the final disposal of the case by the Court, there is urgency in the circumstances.

On the link between the provisional measures requested and the rights claimed on the merits, Judge Bhandari again highlighted the continuity between the previous death penalty cases and the present case. In all such cases, the Court always indicated that the respondent State should not execute the person whose consular rights were at stake in the proceedings before the Court, and that the respondent State should inform the Court as to the measures taken in the implementation of the order. Therefore, Judge Bhandari agreed that the same provisional measures should be indicated in the present case.

Judge Bhandari concludes that a clear case has been made out for the indication of provisional measures under Article 41 of the Statute. Consequently, during the pendency of the proceedings before the Court, Mr. Kulbhushan Sudhir Jadhav shall not be executed. In addition to issues of consular relations, this is a case in which it regrettably appears, on a preliminary examination of the facts, that the basic human rights of Mr. Jadhav have been violated by not allowing India to have consular access to him after his arrest and during the pendency of the criminal proceedings against him in Pakistan.

___________

Downlaod Copy of ICJ order in Jadhav’s case  Click Here >>

CIT-Appeals ex-parte order bad as he himself adjourned hearing for being busy – ITAT

CIT-Appeals ex-parte order bad as he himself adjourned hearing for being busy, notice received on same date and AR was suffering from high fever – ITAT

CIT-Appeals ex-parte order

ABCAUS Case Law Citation:
ABCAUS 1251 (2017) (05) ITAT

The Grievance:
The appellant assessee was aggrieved by the order passed by the Commissioner of Income Tax  (Appeals) ex-parte by holding that assessee had not attended the hearings before him

Assessment Year : 2010-11
Date/Month of Pronouncement: May, 2017

Contentions of the appellant assessee:
It was contended that CIT(Appeals) erred in passing the ex-parte order by holding that assessee had not attended the hearings before him which was absolutely incorrect. It was argued that the notice of first hearing was received on the date of hearing itself. It was pointed out that as per entries in the order sheet before the CIT(A), that the assessee had attended hearings on two occasions but since the CIT(A) was busy, the case was adjourned. It was submitted that on the date so adjourned the authorised representative of the assessee was suffering from high fever and an adjournment petition was filed before the CIT(A) requesting for grant of adjournment. However, the CIT(A) did not agree for any adjournment and passed ex-parte order.

Observations made by the Tribunal:
The Tribunal observed that the CIT(A) had passed an order ex-parte despite the fact that the notice of first hearing was received on the date of hearing itself i.e. 21/04/2016 so the hearing was adjourned to 24/05/2016. On 24/05/2016, the learned CIT(A) was busy and the hearing was adjourned from his end to 10/06/2016. On 10/06/2016, the assessee’s AR was suffering from high fever. A letter stating this fact was filed on 10/06/2016 and hearing was adjourned to 17/06/2016. The assessee’s AR could not recover from his high fever before 17/06/2016 and therefore could not attend the hearing on 17/06/2016. After getting well, the AR attended the office of learned CIT (A) on 20/06/2016 but he was informed that the order has been passed ex-parte.

The ITAT opined that in view of the facts of the case as above, the said ex-parte order was bad in law as the circumstances in which the non attendance resulted were beyond the control of the assessee.

It was also found that the CIT (Appeals) has not adjudicated on the grounds of appeal raised before him and simply passed the ex-parte order for the reason of non attendance.

Held:
The ex-parte order of the CIT(A) was set aside and restored back to the file of the CIT(A) for deciding afresh after giving due opportunity to the assessee.

CIT-Appeals ex-parte order
Download Full Judgment

Revision 263 for non application of section 50C. The order held erroneous and also prejudicial to the interest of Revenue – ITAT

Revision 263 for non application of section 50C. The order of the AO was held not only erroneous but also prejudicial to the interest of Revenue – ITAT 

Revision 263 for non application of section 50C

ABCAUS Case Law Citation:
ABCAUS 1250 (2017) (05) ITAT

The Grievance:
The appellant assessee was aggrieved by the order passed by the Pr. Commissioner of Income Tax  passed under section 263 of the Income Tax Act, 1961 (‘the Act’), holding the assessment order passed by the Assessing Officer (‘AO’) as erroneous in so far prejudicial to the interest of revenue for non application of the deeming provisions of section 50C.

Assessment Year : 2011-12
Date/Month of Pronouncement: May, 2017

Important Case Laws Cited/relied upon:
Malabar Industrial Co. Ltd. 243 ITR 83 (SC)
Panchiram Nahata V / s. Jt. CIT 127 TTJ 128 (Kol),
United Marine Academy 138 TTJ 129 (Mumbai SB)
ACE Builders Pvt. Ltd. 281 ITR 210
CIT V/s. V. S. Dempo Co. Ltd. 387 ITR 354
CIT V / s. Ansal Properties & Industries Pvt. Ltd. 315 ITR 225 (Delhi)
CIT V / s. Suresh Gupta 297 ITR 322
ITO vs. United Marines Academy
Rallis India Ltd., vs. Addl. CIT

Brief Facts of the Case:
The assessee was a private limited company.The CIT observed that the assessee company had sold a residential property forming block of its fixed assets to its managing director. To compute the short term capital loss on residential property, from the WDV the value of sale consideration was reduced. It was seen from the sale deed that against the stamp duty valuation of the property of Rs. 1,42,83,000/- the sale consideration was only Rs. 30 lakhs . On perusal of the records, it was found that the AO had failed to adopt value of the property as per stamp duty valuation as per the provisions of section 50C, while computing the short term capital gain or loss. In the light of the above facts, the Pr. CIT held that the order passed by the AO was erroneous in so far prejudicial to the interest of revenue.

Contentions of the appellant assessee:
It was argued that section 50C of the Act do not apply to the depreciable assets and the issue is debatable till it is finally settled by the judgment of the Supreme Court. Also, it was submitted that the CIT had not dealt with the assessee’s submissions that it was eligible for exemption under section 54EC of the Act in respect of short term capital gains made under section 50 where the assets were held for more than three years.

Observations made by the Tribunal:
The tribunal observed that the provisions of the Section 50C are applicable in the case of transfer of land and building including depreciable capital asset. The provision of section 50C contains a special provision for determining full value of consideration and as per provisions of section 50C when the consideration received or accruing as a result of the transfer by an Assessee of capital asset being land or building or both, is less than the value adopted or assessed by an authority of the State Government for the payment of stamp duty in respect of such transfer, the value so adopted or assessed shall for the purpose of Section 48, be the full value of consideration received or accruing as a result of such transfer.

The ITAT noted that while passing the order u/s 143(3), the AO had not uttered a single word with regard to applicability of provisions of Section 50C in respect of building sold by assessee to its Managing Director.

It was observed that the Hon’ble Bombay High court considering the scope of section 50C held that section 50C is a measure provided to bridge the gap as it was found that the assessee were not correctly declaring the full value of consideration or in other words resorting to the practice of under valuation.

It was further observed that the decision of Special Bench in the case of ITO vs. United Marines Academy had clarified that section 50C will be applicable on the sale value of depreciable asset.  

It was observed that in the instant case, the AO had erred by not taking the sale value of the property as adopted by the Stamp Duty Authority .i.e sale value as per Section 50C of the Act. Further, the ITAT in case of Rallis India Ltd. also held that the applicability of provisions of Section 50C in the case of depreciable asset is now squarely covered by the ITAT Mumbai Special Bench decision in United Marine Academy.

The ITAT concluded that not applying the provisions of Section 50C to the facts of the instant case had rendered the order of the AO not only erroneous but also prejudicial to the interest of Revenue, accordingly, CIT had correctly invoked the provisions of Section 263.

The ITAT also observed that CIT had nowhere disturbed the order of the AO with regard to exemption allowed u/s 54EC of the IT Act. Therefore, the argument was held as not relevant as the assessee will continue to enjoy the exemption u/s 54EC of the Act.

Held:
The appeal of the assessee was dismissed.

Revision 263 for non application of section 50C
Download Full Judgment